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State Supreme Court Justice David Prosser recused himself from the two cases on the docket this session involving the Catholic Church and allegations of sexual abuse of minors.

His quiet withdrawal followed media reports that while District Attorney in Outagamie County in the 1970s, he declined to prosecute a priest accused of child molestation. The priest was convicted of the charges almost 30 years later.

Prosser was on the bench to hear the first case scheduled for oral arguments before the court Thursday. When justices assembled to hear the second case, Hornback v. Archdiocese of Milwaukee and Diocese of Madison, Prosser's high-backed leather chair in the court's ornate chamber was empty.

"Justice Prosser will not be participating in this case," Chief Justice Shirley Abrahamson told court spectators.

Abrahamson made a similar announcement on March 4, when Prosser's seat sat empty while the court heard arguments in State v. MacArthur, where lawyers for Bruce MacArthur argued that the statute of limitations had expired when the former priest was charged in 2006 for sexual misconduct with children in the late 1960s and early 1970s.

Prosser did not respond to requests for comment by The Capital Times following his absence from the bench last week. A court spokesman confirmed Thursday that Prosser was recusing himself from the MacArthur and Hornback cases. The justice had no further comment.

Questions about Prosser's connection to clergy sex abuse cases came to light early this year through the work of the advocacy group Survivors Network for Those Abused by Priests. After two brothers, Todd and Troy Merryfield, testified to convict defrocked priest John Patrick Feeney in Outagamie County Circuit Court in 2004 of molesting them in 1978, word about Prosser's refusal to prosecute Feeney at that time began to spread.

The Capital Times reported on the possible conflict of interest on Feb. 4, when Prosser declined to comment on the evidence gathered by SNAP of his connection to the Feeney case or potential conflicts of interest in participating in priest sexual abuse cases before the court.

Peter Isely, Midwest coordinator of SNAP, said outside the high court's chamber Thursday that Prosser's recusal in these two latest cases involving the Catholic Church and sexual abuse of children "raises a lot of questions."

In 2005 Prosser wrote a majority decision that barred a lawsuit against the Archdiocese of Milwaukee because the statue of limitations had expired. But he joined with the majority last year in a case that opened the door to lawsuits against churches by means of alleging fraud in covering up past sex abuse by clergy members.

Appointed to the Supreme Court in 1998 and elected to a 10-year term in 2001, Prosser joined the court after a series of landmark decisions that erected a barrier to lawsuits against the Catholic Church by adult victims of childhood sexual assault by clergy. Plaintiffs face steeper obstacles to such suits in Wisconsin than in any other state.

The Hornback case heard by the court Thursday involved Gary Kazmarek, a lay teacher who worked for both the Milwaukee Archdiocese and Madison Diocese before teaching in Catholic schools in Kentucky. He returned to teach in public schools in Madison, where he was convicted in 1983 of sexually molesting a boy at Cherokee Middle School.

Kenneth Hornback and Kazmarek's other Kentucky victims were seeking to revive a lawsuit that had been dismissed by the Milwaukee County Circuit Court. Issues before the court include whether employers have a duty to warn future, prospective employers about a worker's potential to harm anyone.

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"Faith must have adequate evidence else it is mere superstition"...Alexander Hodge (1823-1886)

"A myth is a religion in which no one any longer believes"...James Feibleman (1904-1987)

http://www.catholic.org/diocese/diocese_story.php?id=24691&wf=rsscolThe Wisconsin Supreme Court stated July 11 that the statute of limitations had expired for negligence charges due to the sexual abuse by two priests in the Archdiocese of Milwaukee. However, the court also ruled that the charge of fraud should be examined by a trial judge.

In a the document posted on the Wisconsin courts Web site, the judges wrote, “We conclude that the claims asserted against the Archdiocese for negligent supervision are barred by the statute of limitations because according to controlling precedent such claims are derivative and accrued as a matter of law by the time of the last incident of sexual assault.”

However, in regards to the fraud claim, the Supreme Court’s ruling states, “… we deny the motion to dismiss the fraud claims because we conclude that, based solely on the complaints, we cannot determine when the plaintiffs knew or should have known of the Archdiocese's alleged knowledge of the priests' past histories of sexual molestation of children. Therefore, their claims may or may not be time-barred by Wis. Stat. 893.93(1)(b), depending on when the claims for fraud accrued.”

John Rothstein, the archdiocese’s legal counsel for this case, told your Catholic Herald July 11 that since the negligent supervision claim is in fact barred by the statute of limitations, that claim is gone.

“That leaves the claim asserting fraud, so that is sent to the court below for further processing because the Supreme Court couldn’t make a determination at this stage whether or not it was barred.

“As the Supreme Court said, (the fraud charge) may be untimely or it might not be, so that’s what the trial judge is going to have to decide. And that’s why the matter is being sent back to the trial judge.

These two allegations of negligent supervision and fraud were presented to trial court in 2005, according to Rothstein.

“Given the age of the allegations, the trial judge said that all these allegations were time-barred,” he said.

“The next step for the archdiocese is, we’ll go through the normal process, the files and papers will find their way to the trial judge and then we’ll ask the trial judge to hold a hearing or meeting with all the parties to map out how we go from here,” he explained. “At that first meeting, I think we’ll try to identify for the judge and set the scheduling so we can bring the threshold question of that statute of limitations back to the judge for the processing the Supreme Court has directed. After that, the question on the statute of limitations is resolved, if the trial judge decides that the lawsuit is untimely, that completes the lawsuit. If he concludes it was timely, then he’ll have to schedule a trial…”

Rothstein said the ruling gave the archdiocese good news, though not all good news.

“Clearly the fact that the court reaffirmed the long-standing statute of limitations for negligent supervision claims, I think it’s appropriate and consistent with the existing law in our state,” he said. “On the fraud count, while we obviously would’ve preferred, and we believe the trial judge appropriately decided the question (in 2005), we understand the Supreme Court’s direction that the trial judge should now take additional information before deciding the statute of limitations for fraud. As a lawyer that gives me clear direction to what the Supreme Court wants and I’m very pleased to do that.”

The Archdiocese released a statement to the media, stating, “We respect the Supreme Court’s decision and will abide by it. … The Archdiocese of Milwaukee remains committed to continuing our work on the issue of clergy sexual abuse. We apologize to all those who have been affected by clergy sexual abuse, especially victims/survivors and their families. We also renew our promise to protect the children and young people in our community from sexual abuse.”

Additionally, Archbishop Timothy M. Dolan, in an e-mail to archdiocesan leaders, stated, “The tragedy of clergy sexual abuse of children and, perhaps even more, the failure in the past of some within the Church to deal decisively with it long ago, will always be an ugly stain on our history. We renew our apology to all victims/survivors and repeat our sincere effort to support their personal recovery. … To our faithful clergy and dedicated people, I thank you for your resilience and support. We know much has been accomplished during these past five years, but we also know there is always more we can do. My pledge and commitment to victims/survivors to work toward healing and resolution remains steadfast.”

The archbishop concluded his statement by saying, “Today's news is a reminder that our work on the issue of clergy sexual abuse will never be over, but that we must remain vigilant in ensuring all members of our community, especially children and young people, are safe and protected.”

"Faith must have adequate evidence else it is mere superstition"...Alexander Hodge (1823-1886)

"A myth is a religion in which no one any longer believes"...James Feibleman (1904-1987)

The Archdiocese of Milwaukee will be solely responsible for paying any potential settlements or judgments in at least four lawsuits involving clergy sexual abuse because its insurance policies don’t cover intentional acts such as fraud, a judge ruled Thursday.

Milwaukee County Circuit Judge Jean DiMotto made no findings about whether the archdiocese committed fraud in moving abusive priests without notifying new parishioners of prior allegations, which is the claim underlying the lawsuits.

Around the country, insurers have generally paid 50% or more of multimillion-dollar settlements or judgments in clergy sex abuse cases, most of them based on negligence claims.

John Rothstein, a lawyer for the archdiocese, said he would consult with his client about a possible appeal of the decision or other possible actions.

An archdiocese spokeswoman said DiMotto’s ruling has no bearing on the merits of the litigation.

“This was a narrow procedural issue related to insurance coverage which comes up from time to time between insurers and insureds,” said Julie Wolf, assistant communications director. “In addition, it is not appropriate for us to comment on pending litigation or the ramifications of court decisions that have not yet been made.”

Jeffrey Anderson, a St. Paul lawyer who represents victims here and in several other states, said there are nine fraud-based clergy sex abuse cases pending in Milwaukee County and that he expects more will be filed. Bishops Accountability, a nonprofit that tracks settlements involving claims against the Catholic Church, estimates that $3 billion has been paid to victims since 1950; the U.S. Conference of Catholic Bishops reported various dioceses paid $615 million to victims last year.

In 2006, the Milwaukee Archdiocese agreed to pay $16.65 million to 10 California victims of abuse by Milwaukee priests who were moved to parishes there. Slightly less than half of the settlement was covered by insurance; the archdiocese announced that its portion would be covered by the sale of the Cousins Center in St. Francis, other archdiocesan properties and the liquidation of some long- and short-term investments. The archdiocese noted in that case that no parish property was affected by the settlement.

Until 2007, victims of sex assault in Wisconsin were unable to sue the Catholic Church because of a pair of mid-1990s state Supreme Court decisions. Last year, the court ruled the church could be sued for fraud in some cases but not for negligence.

Most of the local cases have been assigned to DiMotto, including four that involve the same two priests at the center of the California settlement, the late Siegfried Widera and Franklyn Becker, who has been removed from the priesthood.

Anderson, the plaintiffs’ attorney, argued that the church committed fraud by knowingly assigning priests with histories of sexual abuse in parishes without alerting parishioners — or, in some cases, other priests — to the potential danger.

Mark S. Nelson, a lawyer for the insurance company, argued that if such fraud was proven, it would constitute intentional acts that nullified insurance coverage.

DiMotto, assuming for the sake of the motions that the lawsuits claims were true, noted that Widera was placed in a parish after being convicted of sexual misconduct and the archdiocese went to lengths to keep the priest’s past a secret.

“Fraud by definition is intentional,” she said. “Why else would there be deception? We do not lie by accident.”

DiMotto said the insurance companies do not have an obligation to pay the claims against the church. She also said the insurance carriers do not have to cover the church’s legal fees after Thursday’s ruling but that coverage of fees incurred earlier in the case would be decided later.

In response to a question from David Muth, one of the church’s lawyers, DiMotto said that if the Supreme Court reverses itself and permits the church to be sued for negligence, then her decision on the insurance coverage would not apply.

Anderson told a reporter there could be another route for the church to be sued for negligence. The Legislature is considering a bill to permit a two-year window for victims to sue even for abuse committed decades earlier. He urged the church to drop its opposition to the bill.

“The archdiocese would benefit from it, and the children who were abused would benefit,” Anderson said.

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I also don't agree that the diocese should be allowed to file bankruptcy when the catholic church is obviously a very wealthy institution.

While I do believe IMO the catholic church is morally and ethically bankrupt, I hope the RCC will be rendered just as financially bankrupt.

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"Faith must have adequate evidence else it is mere superstition"...Alexander Hodge (1823-1886)

"A myth is a religion in which no one any longer believes"...James Feibleman (1904-1987)